Sanoj Mandal @ Sanoj Kumar Mandal vs The State Of Bihar
2021 Latest Caselaw 4080 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (SJ) No.500 of 2019
      Arising Out of PS. Case No.-150 Year-2012 Thana- RANIGANJ District- Araria
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SANOJ MANDAL @ SANOJ KUMAR MANDAL, Son of Ramesh Prasad Mandal @ Ramesh Prakash Mandal @ Ramesh Mandal, Resident of Village - Bishanpur, P.S. - Raniganj, District Araria ... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Md. Ziaul Quamar, Advocate Mr. Syed Ashfaque Ahmad, Advocate For the Respondent/s : Mr. Bipin Kumar, A.P.P ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date : 12-08-2021

The sole appellant-Sanoj Mandal @ Sanoj Kumar Mandal

has challenged his conviction under Section 376 of the Indian

Penal Code whereunder the appellant was awarded ten years

rigorous imprisonment and a fine of rupees fifty thousand which is

payable to the victim of the crime. The impugned judgment of

conviction dated 26.11.2018 and order of sentence dated

29.11.2018 have been passed, in Sessions Trial No. 499 of 2013

corresponding to CIS No. 3347 of 2014 arising out of Raniganj

P.S. Case No. 150 of 2012, by the learned Additional Sessions

Judge-II, Araria.

2. The prosecution case as disclosed in the written

report of the prosecutrix dated 08.08.2012 is that in the night of

07.08.2021, the prosecutrix was sleeping in her house in a Patna High Court CR. APP (SJ) No.500 of 2019 dt.12-08-2021

separate room whereas the parents were in the adjoining room. At

about 12:00 P.M., the appellant, who is neighbour, entered into her

room and forcefully opened her lower garments and ravished her

by keeping his hand on her mouth to prevent any alarm. However,

she anyhow made alarm and the parents came and saw the

appellant. Thereafter, on alarm of the parents, the neighbours also

reached there and the appellant was taken into custody. Soon the

mother of the appellant Sobha Devi and brother Mithu Kumar

(who were also co-accused and were acquitted of the charges

under Sections 341, 332, 457 of the Indian Penal Code) came

there and after commission of assault against the prosecution

forcefully took away to the appellant. Thereafter, a Panchayati

was convened in the village and the Panches decided that the

appellant should marry with the prosecutrix but the appellant

refused and thereafter the FIR was lodged.

3. On the basis of written report (Ext. 1), the formal FIR

(Ext. 3) was drawn and registered as Raniganj P.S. Case No. 150

of 2012 on 09.08.2012. During investigation, the prosecutrix was

medically examined. Her statement under Section 164 Cr.P.C. was

recorded. The statement of the prosecutrix under Section 164

Cr.P.C. is Ext. 2 and her medical examination report is Ext. 5.

After completion of investigation, the police submitted charge- Patna High Court CR. APP (SJ) No.500 of 2019 dt.12-08-2021

sheet vide Ext. 6 and, accordingly, the appellant and others were

put on trial.

4. The prosecution produced altogether ten witnesses

during trial. The prosecutrix P.W. 6 consistently supported her

case as disclosed in the FIR or her statement before the Magistrate

under Section 164 Cr.P.C. The cross-examination, at length, does

not reveal that the prosecutrix made any exaggeration or material

contradiction regarding the place of occurrence, manner of

occurrence and the identity of the perpetrator of the crime.

P.W. 1 Nityanand Mandal and P.W. 5 Devki

Devi are parents of the prosecutrix and they claimed that they had

seen the incident and had caught the appellant inside the room.

Remaining prosecution witnesses P.W. 2 Jay

Prakash is a relative of the prosecutrix and he had come on

hearing the news of the incident. P.W. 3 Devendra Mandal, P.W. 4

Vidhyanand Mandal, P.W. 7 Satyadev Mandal and P.W. 8 Sudhir

Mandal are witnesses who reached at the place of occurrence soon

after the alarm and saw that the appellant was in clutches of the

parents of the prosecutrix. The parents of the prosecutrix disclosed

about the occurrence to the witnesses. In the next morning, a

Panchayati was convened wherein most of the witnesses were Patna High Court CR. APP (SJ) No.500 of 2019 dt.12-08-2021

present and they decided that appellant should marry with the

prosecutrix. The appellant refused, hence, the FIR was lodged.

P.W. 9 Dr. Mantasa had examined the

prosecutrix. The Doctor was of opinion that hymen of the

prosecutrix was ruptured. However, no other injury was there on

the private part. The vaginal swab did not show any spermatozoa

either alive or dead. The age of the prosecutrix was assessed

between seventeen to nineteen years. In the cross-examination, the

witness admitted that there was no sign of fresh sexual assault.

P.W. 10 Subhash Chandra Singh is the Investigating Officer of the

case. He had fully supported the investigation done by him.

5. The defence produced two witnesses. D.W. 1

Indiranand Mandal and D.W. 2 Md. Alauddin. Both the witnesses

are of formal nature who have proved Ext. A. An Informatory

Petition submitted to the Sub-Divisional Officer, Araria on

04.08.2011 by Sobha Devi against the father of the prosecutrix

and other prosecution witnesses wherein Sobha Devi raised

apprehension that her son (appellant) would be kidnapped by the

opponents for the purpose of marriage or any other untowards

incident may happen including false implication in a criminal

case.

Patna High Court CR. APP (SJ) No.500 of 2019 dt.12-08-2021

6. Mr. Syed Ashfaque Ahmad, learned counsel for the

appellant submits that there is material contradiction as regards

place of occurrence. The nephews of the father of the prosecutrix

did not support about the occurrence. The garments of the

appellant were not seized. There is contradiction as regards which

prosecution witness came first at the house of the prosecutrix on

hearing alarm. Witness Sukar Mandal has not been produced by

the prosecution. Old enmity is the reason for false implication.

Learned counsel for the appellant has placed reliance on two

judgments of the Hon'ble Supreme Court:- Ganpat Singh Versus

State of Madhya Pradesh reported in (2017) 16 SCC 353 and

Sudhakar Alias Sudharasan Versus State Represented by the

Inspector of Police, Srirangam Police Station, Trichy, Tamil

Nadu reported in (2018) 5 SCC 435.

7. To contra, Mr. Bipin Kumar, learned counsel for the

State-respondent contends that the prosecutrix of this case is

consistent in her evidence throughout and she is materially

corroborated by the medical evidence. Moreover, her parents have

also supported the case as eyewitness and there is no reason to

disbelieve them. Nothing has been brought on the record that any

enmity was between the parties. Rather the prosecution witnesses

have denied the suggestion of the defence that any enmity was Patna High Court CR. APP (SJ) No.500 of 2019 dt.12-08-2021

there between the two families. No girl would make a self

humiliating statement, for trivial dispute between the two families.

The learned Trial Judge has correctly scrutinized the evidence of

the parties before coming to a conclusion that the prosecution has

successfully proved the charge against the appellant.

8. The law is settled that while appreciating the

evidence of victim of sexual assault it should be treated on par

with the evidence of an injured witness. The reason is simple that

a girl or a woman residing in non-permissive Indian society would

be reluctant even to admit that any such incident which is bound

to reflect on her chastity had ever occurred. Normally, the Indian

woman has tendency to conceal such offence even before her

family members, much less before the public or before the police.

Therefore, testimony of the prosecutrix to some extent stands on

higher pedestal than that of an injured witness.

Corroboration is not an essential component to

bestow credence to the evidence of victim of rape. If the Doctor

who examined the victim after two days of the occurrence found

her hymen ruptured but no other sign of sexual assault it would

not make the prosecutrix unbelievable. Unless the totality of the

circumstances appearing on the record discloses that the Patna High Court CR. APP (SJ) No.500 of 2019 dt.12-08-2021

prosecutrix has strong motive to falsely implicate the person

charged.

9. In the case of Rai Sandeep V. State (NCT of Delhi)

reported in (2012) 8 SCC 21, the Hon'ble Supreme Court said that

before relying on the sole testimony of the prosecutrix, the Court

must be satisfied that the prosecutrix is a "sterling witness". Para

22 of the judgment is being reproduced below:

"22. In our considered opinion, the "sterling

witness" should be of a very high quality and

calibre whose version should, therefore, be

unassailable. The court considering the version of

such witness should be in a position to accept it

for its face value without any hesitation. To test

the quality of such a witness, the status of the

witness would be immaterial and what would be

relevant is the truthfulness of the statement made

by such a witness. What would be more relevant

would be the consistency of the statement right

from the starting point till the end, namely, at the

time when the witness makes the initial statement

and ultimately before the court. It should be

natural and consistent with the case of the Patna High Court CR. APP (SJ) No.500 of 2019 dt.12-08-2021

prosecution qua the accused. There should not be

any prevarication in the version of such a witness.

The witness should be in a position to withstand

the cross-examination of any length and

howsoever strenuous it may be and under no

circumstance should give room for any doubt as

to the factum of the occurrence, the persons

involved, as well as the sequence of it. Such a

version should have co-relation with each and

every one of other supporting material such as the

recoveries made, the weapons used, the manner of

offence committed, the scientific evidence and the

expert opinion. The said version should

consistently match with the version of every other

witness. It can even be stated that it should be

akin to the test applied in the case of

circumstantial evidence where there should not be

any missing link in the chain of circumstances to

hold the accused guilty of the offence alleged

against him. Only if the version of such a witness

qualifies the above test as well as all other such

similar tests to be applied, can it be held that such Patna High Court CR. APP (SJ) No.500 of 2019 dt.12-08-2021

a witness can be called as a "sterling witness"

whose version can be accepted by the court

without any corroboration and based on which

the guilty can be punished. To be more precise,

the version of the said witness on the core

spectrum of the crime should remain intact while

all other attendant materials, namely, oral,

documentary and material objects should match

the said version in material particulars in order to

enable the court trying the offence to rely on the

core version to sieve the other supporting

materials for holding the offender guilty of the

charge alleged."

10. P.W. 6 the prosecutrix deposed that the incident took

place one and half years ago. The date was 07.08.2012, a Tuesday.

In the night, she was sleeping in her house in a room. At about

12:00 midnight, the appellant lifted one flank of the door to open

it and entered into her house. From his left hand pressed on her

mouth and opened her lower garment and ravished her. A "Deep"

was lighted inside the room and in its light she recognized the

appellant. She attempted to make alarm but the appellant pressed

on her mouth and did not allow her to speak or cry. However, she Patna High Court CR. APP (SJ) No.500 of 2019 dt.12-08-2021

anyhow raised alarm and the parents from the adjoining room

came and caught the appellant. Thereafter, on the alarm of parents

the neighbours came. The mother and brother of the appellant also

came and committed assault and got forceful release of the

appellant from there. In the morning, a Panchayati was convened

and the Panches decided that both be married. In the cross-

examination, she said that if the appellant would have married

with her no case would have been lodged.

There is nothing in the cross-examination of

the witness to disbelieve her testimony. On careful scrutiny of her

testimony, in my view, the prosecutrix appears to be a sterling

witness as she is consistent in her statement regarding occurrence

right from the starting point till the end which would depict from

her cross-examination wherein there is no suggestion that she is

making any contradictory statement on material particular. There

is no evidence of enmity between the two family nor there is any

material to suggest that the victim would make statement which

would be self humiliating and against the honour of her own

dignity.

11. Moreover, the prosecutrix is corroborated by the

testimony of her parents who claims to have seen the occurrence

and there is nothing in the cross-examination of the parents to Patna High Court CR. APP (SJ) No.500 of 2019 dt.12-08-2021

suggest that they have exaggerated in material particular or their

presence at the time of occurrence was doubtful. Since the

prosecution witnesses were not confronted with their earlier

statement before the police nor the attention of the investigating

officer was drawn towards any such statement, the rigors of

Section 145 of the Evidence Act would be applicable.

12. The cases relied upon by the learned counsel for the

appellant are not of any help for the appellant in the facts and

circumstances of the present case. Ganpat Singh's case (supra)

was a case of murder trial based on circumstantial evidence which

was dealt with by the Hon'ble Supreme Court. Sudhakar Alias

Sudharasan's case (supra) was also a murder case and was

regarding appreciation of evidence of interested/partisan witness.

13. There is nothing on the record to doubt that other

prosecution witnesses who claims to have reached at the place of

occurrence on alarm were not reliable. All these witnesses are

neighbours and in normal course of conduct, it was natural that

they would reach at the place of occurrence at the alarm of the

parents of the prosecutrix. The lapses on the part of the

Investigating Officer in non-seizure of the garments of the

appellant or the prosecutrix or contradiction in testimony of the

neighbours as to who reached first at the place of occurrence Patna High Court CR. APP (SJ) No.500 of 2019 dt.12-08-2021

would not tell upon trustworthiness of the prosecutrix. For the

same reason, non-examination of Sukar Mandal is not a material

lapse in the prosecution case as plurality of evidence is not the

requirement of law. Therefore, this Court is of the considered view

that the prosecution has proved the charge against the appellant

beyond all reasonable doubts.

14. The learned Trial Court has considered the mitigating

and aggravating circumstances while awarding the sentence

against the appellant. Therefore, this Court is not inclined to

interfere with the quantum of punishment awarded by the learned

Trial Judge.

15. In the result, trial court judgment is hereby affirmed

and this appeal stands dismissed as devoid of any merit.

(Birendra Kumar, J)

Kundan/-

AFR/NAFR                NAFR
CAV DATE                06.07.2021
Uploading Date          12.08.2021
Transmission Date       12.08.2021